Self-defense laws in Texas have limits

Texas, Florida share similar 'Stand Your Ground' stances.

Updated 12:27 am, Friday, March 23, 2012

Ray Lemes is charged with murder in the fatal shooting of Angelo State University student Tracy Glass, 19, on Aug. 4, 2007.

Ray Lemes is charged with murder in the fatal shooting of Angelo State University student Tracy Glass, 19, on Aug. 4, 2007.

Photo: EDWARD A. ORNELAS/eaornelas@express-news.net

Self-defense laws in Texas have limits

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In 2007, as the media and the public focused on Texas' so-called “Castle Doctrine” amendment to the penal code — making it easier for homeowners to claim self-defense when shooting an intruder — a more sweeping self-defense law change also quietly passed in the Legislature.

The Lone Star State joined the ranks of other states that no longer cited a “duty to retreat,” in the home or elsewhere, before using deadly force in self-defense.

While “Castle Doctrine” laws have been much debated, “Stand Your Ground” or “Shoot First” laws — now on the books in nearly half the United States — have jumped to the forefront of public discussion in recent weeks as protests have mounted over the fatal shooting in Florida of unarmed teenager Trayvon Martin.

Neighborhood watch volunteer George Zimmerman is under investigation by the Florida state attorney and the Justice Department but was not immediately arrested after telling responding officers he shot Martin in self-defense.

In Florida, which implemented its law in 2005, and in Texas, when a person claims self-defense, the burden is on police and prosecutors to prove otherwise.

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“Florida was kind of in the forefront of states passing that law,” St. Mary's University law Professor Gerald Reamey said Thursday, describing Texas' “Stand Your Ground” law that followed two years later as “pretty much identical with Florida.”

“It really was under the radar,” he said of the additional legislation.

Prior to 2007, deadly force was not considered justified in Texas if retreat was possible. Prosecutors would often point out in murder trials that a defendant claiming self-defense could have walked, run or driven away.

“Everybody always thinks of Texas as a wild shoot-'em-up state,” said first Assistant District Attorney Cliff Herberg. But for decades, retreat was required even in one's own home, he said.

There are still plenty of limits on the books in Texas as to what constitutes self-defense, Herberg said, explaining that one must be lawfully at a place, must not have provoked a confrontation and must be in “reasonable fear” of his or her life.

“Provocation” and “reasonable fear” are where many self-defense claims sink at trial, and that might end up being the case as well in Florida, legal experts said, adding that more information about the incident is needed.

“You can't go out guns blazing,” Herberg said. “If people become trigger-happy, there's a danger of innocent people getting killed, and that's not what the law wants to see happen.”

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Technically, Texas has never had a “Castle Doctrine” law at all, said Reamey of St. Mary's. Such laws only exist as an exception to the retreat rule for homeowners in states that don't otherwise have “Stand Your Ground” laws, he said.

Texas' version, more of a “Castle Doctrine-like” law, eliminates hoops for homeowners to claim self-defense, he said. It allows for the automatic assumption under the law that a homeowner is in fear for his or her life if confronted by an unlawful intruder in the home.

“I think most people agree if somebody is in your house at night uninvited, most homeowners are going to feel threatened and very afraid,” Herberg said. “Outside, you do not get the benefit of that presumption.”

Texas' and Florida's requirement that prosecutors must prove a slaying wasn't self-defense — instead of the defendant having the burden of proof when making such a claim — does have critics.

“That can be a significant burden in a murder case where your best witness is dead,” said Robert Kepple, executive director of the Texas District and County Attorneys Association, which does not take specific stances on Texas laws.

That was one of the issues in Bexar County last August as Ray Lemes, 52, was acquitted by a jury of murder in the shooting death of Tracy Glass, 19, outside Lemes' home. Prosecutors said Glass' five bullet wounds were excessive and that the unarmed teen was trying to de-escalate the confrontation by running away. Lemes claimed self-defense, testifying that Glass turned and lunged at him.

Glass' father, Burnell, said Thursday that he hasn't paid much attention to the Florida case. But Texas' law, he said, needs work.

“It's written badly,” he said. “The fact that a person can kill anyone and then just say, ‘I felt threatened,' that is not a good law. It's not right. You should have to prove that person was threatening your life first.”

The way the Florida case is being handled isn't surprising to Taj Matthews, an East Side community activist who runs the Claude & ZerNona Black Foundation.

Matthews, who lived in the Orlando, Fla., area for a while, said race was a problem there, and he described the shooting as “racial profiling to the fullest.” But people are more outraged, he said, that Zimmerman claimed self-defense.

“What's scary to me is this kid was not killed, this kid was murdered,” Matthews said. “And the fact that on the other side of the aisle that people aren't outraged about this is what's got me. This kind of incident is not just unique to that area; this is happening all over the place.”

“You can say anything after another person is dead, especially if there are no witnesses,” he said, describing the laws as a vague license to kill. “There needs to be more rallies all over the U.S. as a result of this — especially in states that have ‘Stand Your Ground' laws — because this is just ridiculous.”